Sodomy for Some

So it looks like Rick Santorum won’t go the way of
Trent Lott. The chairman of the Senate Republican Caucus came under fire in
late April for antigay remarks made during a bizarre interview with the
Associated Press in which he defended the criminalization of sodomy, comparing
“homosexual acts” to bigamy, adultery, incest and, as he put it, “man on
child” and “man on dog” action. While Santorum was publicly rebuked by
moderate Senate Republicans, and several Democrats demanded that he resign his
leadership position, Bush mounted enough of a defense to save Santorum’s
job, calling the senator an “inclusive man.”

Indeed, Santorum did try to be “inclusive,” insisting
he has “nothing against anyone who’s homosexual” but rather has “a
problem with homosexual acts.” It’s the old “love the sinner, hate the
sin” saw that accepts homosexuals as long as they abstain from homosexual
sex. What’s particularly troubling about Santorum’s antigay statements,
however, is that they were made just weeks after a crucial gay-rights case,
Lawrence v. Texas, was argued before the Supreme Court (a decision is expected
in June).

Lawrence v. Texas contests a Texas “Homosexual
Conduct” law that specifies sodomy as “deviate sexual intercourse”
between persons of the same gender—one of only four state laws that prohibit
sodomy for homosexuals only. (Nine other states have laws that criminalize
sodomy no matter who engages in it.) Lambda Legal Defense & Education Fund
pursued a two-pronged strategy in arguing before the Court. Its broader
privacy argument would strike down all sodomy laws and reverse Bowers v.
Hardwick, the 1986 Supreme Court decision that upheld a Georgia sodomy
statute. Its narrower equal-protection argument would eliminate just the
homosexual sodomy laws on the basis that they unfairly single out gays and
lesbians.

In reality, few sodomy laws are ever enforced, and
penalties usually amount to a small fine. As Lambda’s brief points out,
Texas has neither the interest in nor the ability to prosecute every incident
of homosexual sex. The law’s true effect is to brand gays and lesbians as
second-class citizens and license discrimination against them. It’s against
this pernicious effect that Lambda has shaped its equal-protection claim,
pointing out, for example, that sodomy laws are often cited to prevent gay and
lesbian couples from adopting children, and thus forming families, simply
because of the presumption of criminal sexual activity.

The argument about equality and family is likely to
appeal to conservative Justices like Sandra Day O’Connor (who sided with the
majority in Bowers) and Anthony Kennedy. Ruling narrowly on equal protection
would allow them to strike down the Texas law while keeping Bowers intact. And
this legal argument has its political correlate: It’s the strategy used by
mainstream gays who counter antigay rhetoric by offering up sanitized,
family-oriented versions of homosexuality, as when Dan Savage argued in the
New York Times that gay families are “strong, healthy families” or when
the Republican Unity Coalition, a conservative gay group, said that “Senator
Santorum owes an apology to gay men and women who support, build and have
loving families all across America.”

Fair enough, as far as it goes. But the
gay-family-values/equal-rights argument fundamentally misreads the right
wing’s expansive view of sodomy laws. Santorum doesn’t just hate
“homosexual acts.” He condemns in the same breath any “acts outside of
traditional heterosexual relationships” that are “antithetical to a
healthy, stable, traditional family.” Likewise, the Texas brief asserts the
right to regulate any “sexual misconduct outside the venerable institution
of marriage.” Santorum and Texas aren’t just antigay; they’re antisex.
They want to roll back the clock to the colonial era, when laws prohibited any
nonprocreative sexual acts—consigning us all to be criminal sodomites.

Even a narrow equal-protection decision could lay the
groundwork for repealing nondiscriminatory sodomy laws if, in practice, they
primarily target gays and lesbians.

But Lambda’s privacy claim—that the state has no
business intruding on anyone’s private, consensual relations—deserves more
political attention. A victory on that front would not only bolster
reproductive-rights laws based on privacy, it would also avoid strengthening
the reactionary notion that sex should be reserved for parenting, monogamous
couples, with or without a queer twist. It’s also truer to the diversity of
gay and lesbian sex—sex outside marriage, sex for fun, sex without love, sex
that has nothing to do with children or families. Sex can’t possibly bear
all those burdens, and in a country that respects sexual freedom, we
shouldn’t have to pretend that it does to remain on the right side of the
law.